Deputies as Employers – changes to 'right to work' checks

Due to the nature of Court of Protection work, which involves management of a wide variety of day-to-day issues on behalf of incapacitated clients, it can often intersect with other areas of law. One such area is employment law, as many property and affairs Deputies acting for clients who have suffered catastrophic injury or illness may directly employ carers to care for the client in their own home.

Consequences of employing illegal workers

Deputies must therefore take note of the recent changes to the law regarding the checks to be undertaken by employers in respect of all potential new employees, to verify their right to work in the UK.

This is extremely important as it is a criminal offence to employ a person whom you know (or have reasonable grounds to believe) does not have immigration permission to work in the UK. It is also a civil offence to do this unknowingly, however an employer will have a defence to this civil offence if they are able to show that they carried out the appropriate ‘right to work’ checks required by the Home Office before that person’s employment began.

EEA nationals working in the UK

Prior to 31 December 2020 these checks were very simple in relation to citizens of countries within the EEA, as EEA citizens and their family members benefited from EU free movement rights and were therefore permitted to live and work freely in the UK. All that was required was proof of EEA nationality, such as a passport or national identity card.

Following the UK’s exit from the EU, however, evidence of EEA nationality is no longer sufficient to demonstrate a right to live and work in the UK. EEA nationals who were already living in the UK prior to 31 December 2020 were entitled to apply for settled or pre-settled status before 30 June 2021, via the EU Settlement Scheme. This would allow them to continue living and working in the UK.

This option was not open to EEA nationals who arrived in the UK after 31 December 2020, who therefore require specific entitlement to work in the UK, such as an appropriate visa.

New guidance on conducting ‘right to work’ checks

The Home Office issued guidance on 18 June 2021 setting out how to conduct these checks and which documents can be accepted as proof of a person’s right to work in the UK. It is important to ensure that these checks are done in a non-discriminatory manner, without making any assumptions about a potential employee’s right to work based on their nationality, skin colour or other characteristics. The checks should be completed in relation to all potential employees, including British citizens, and documented appropriately.

For employees whose right to work checks were undertaken before 1 July 2021, when the new rules came into force, there is no requirement for employers to carry out new right to work checks. Employers can chose to carry out retrospective checks on any EEA nationals employed before 1 July 2021 in order to ensure the continuity of their workforce, however any retrospective checks must be carried out in a non-discriminatory manner.

Transitional arrangements

For employees who were entitled to apply to the EU Settlement Scheme but did not do so by 30 June 2021, transitional arrangements will be in place until 31 December 2021. During this period, if an employer finds out that their employee has not applied to the scheme, the employer is not required to terminate their employment immediately. Instead, the employee can apply to the EU Settlement Scheme within 28 days and provide their certificate of application to their employer.

The employer must then use the Employer Checking Service to confirm the application. If the employer receives a Positive Verification Notice from that service, they will then be protected from civil liability for six months, while the employee’s application is processed. The employer must then carry out a repeat check before the expiry of that six month period.

It is important to highlight that there are only very limited circumstances in which a late application will be approved – simply missing the deadline will not be considered a reasonable excuse. As such, employers must be aware that there is a strong possibility that they will need to cease employing any EEA nationals who did not apply to the EU Settlement Scheme in time.

Deputies

Property and affairs Deputies acting as employers must therefore be very careful to ensure that they follow the new guidance correctly, seeking employment law advice where necessary, and that they do so in a non-discriminatory manner. By doing so the Deputy will comply with their duty to ensure that the actions taken by them on their clients’ behalves are lawful.

If you have any queries or questions about mental capacity or Deputyship then please contact our specialist Court of Protection team by email at cop@boyesturner.com.